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May 13, 2016 by Rena Steinzor

We Need to Get Back to Work

Originally published on RegBlog by CPR Member Scholar Rena Steinzor.

Rulemaking has slowed to a crawl throughout the executive branch. If an agency does not have a statutory mandate to undertake such a brutal and resource-intensive process, the choice to accomplish its mission through any other means will be tempting. Of course, if the policy issues are controversial, no pathway to their redress—rule, adjudication, guidance, or bully pulpit—will be problem-free. The opposition party made clear, almost as soon as President Barack Obama was elected, that over-regulation would remain among its most shrill and pervasive battle cries.

Professor Tom McGarity, my friend and colleague at the Center for Progressive Reform and a gifted commentator on these trends, calls the new reality surrounding the rulemaking process a “blood sport administrative law.” By this he means that industry opponents of new rules have broadened the arena of conflict to include early and constant appeals to Congress and the courts, raising the stakes and making the costs quite high for any constituency that wants to prevail in rulemaking battles. Not coincidentally, this blood-sport approach edges public interest groups to the sidelines.

But my assignment here is not to lament the gridlock that …

May 12, 2016 by Mollie Rosenzweig
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The U.S. Department of Justice (DOJ) recently launched a criminal investigation of Dole Food Company, continuing a trend of criminal enforcement against those responsible for deadly food safety lapses. The investigation stems from a Listeria outbreak in bagged salad that sickened 33 people, four of whom died. 

Between September 2015 and January 2016, 33 people in the U.S. and Canada became infected with Listeria from bagged lettuce processed at Dole's Springfield, Ohio plant. At first, investigators struggled to trace the widespread outbreak back to a source, but genetic fingerprinting allowed inspectors from Ohio to connect the outbreak to the Dole plant. On January 14, 2016, officials inspected the Dole plant and collected samples, which tested positive for Listeria. Dole voluntarily stopped production at the plant on January 21 and issued a voluntary recall on January 27. 

Tragically, Dole knew about the Listeria contamination in …

May 11, 2016 by Katie Tracy
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Can you imagine working for a boss who refuses you the dignity of taking a bathroom break? According to a revealing new report published today by Oxfam America, denial of bathroom breaks is a very real practice at poultry plants across the country, and line workers at these plants often "wait inordinately long times (an hour or more), then race to accomplish the task within a certain timeframe (e.g., ten minutes) or risk discipline." 

If you've never worked on an assembly or production line, you may wonder why workers need approval to use the bathroom in the first place. The processing line at a poultry plant moves rapidly, which means when one worker leaves the line, another must take his or her place to keep up with production. Typically, the employer will have a system in place for workers to signal when they need a …

May 10, 2016 by Evan Isaacson
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In the world of watershed restoration, there are multiple tools and tactics that government agencies, private landowners, and industry can use to reduce pollution and clean up our waterways. In Maryland, two of those approaches seem destined to collide.

On the first track is nutrient trading, a least-cost pollution control concept predicated on the idea that if some distant entity can reduce the same amount of pollution at a lower cost than a facility with a water pollution control permit, then the permit holder should pay the other entity to do so. On the second track is green infrastructure investment, a labor-intensive, capital-intensive direct investment in local urban pollution controls. Neither concept has yet gained widespread adoption, despite pilot programs and local initiatives in a few dozen places around the United States, but what happens when both concepts emerge at the same time and the same place …

May 9, 2016 by James Goodwin
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These days, it seems a week doesn't go by without some conservative advocacy group releasing a new study that purports to measure the total annual costs of federal regulation. In this case, it's literally true. Last week, the reliably anti-regulatory Competitive Enterprise Institute (CEI) put out its annual tally, provocatively titled "Ten Thousand Commandments," which this year finds a total cost of $1.885 trillion for 2015. And the week before that, the just-as-reliably anti-regulatory Mercatus Center published a report that concludes that federal regulations cost $4 trillion in 2012. 

To make things more confusing, these studies follow the same basic two-part template. First, they include only the cost side of the ledger, ignoring the huge benefits that federal regulations produce by protecting people and the environment against unacceptable harms. No reasonable policy evaluation would take such a misguided approach, and the decision to ignore …

May 5, 2016 by Dave Owen
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Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen.

Right now, the United States' second-most-heated environmental controversy—behind only the Clean Power Plan—involves the Clean Water Rule, which seeks to clarify the scope of federal regulatory jurisdiction under the Clean Water Act. According to its many opponents, the rule is one big power grab. EPA and the Army Corps of Engineers, according to the standard rhetoric, are unfurling their regulatory tentacles across the landscape like some monstrous kraken, with devastating consequences for key sectors of the American economy.

In a forthcoming article, I argue that this rhetoric is false, and that it also misses a much more interesting true story. The Clean Water Rule is indeed part of a major regulatory transformation, which has extended and transformed regulatory protections for small streams. But the Clean Water Rule is just a small part …

May 4, 2016 by Brian Gumm
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NEWS RELEASE: New Paper Shows Americans Hurt By Forced Arbitration Agreements with Big Banks, Credit Card Companies

Forthcoming Rule from Consumer Financial Protection Bureau Offers Some Solutions, but More Can Be Done to Protect Consumers

Opening a checking account or using a credit card is an essential, everyday activity for many Americans, but most financial services are governed by pages of fine print, much of which is difficult to navigate and understand. As a new paper from the Center for Progressive Reform (CPR) shows, these contracts often contain forced arbitration clauses that severely restrict consumer rights and frustrate corporate accountability. 

The CPR paper, Regulating Forced Arbitration in Consumer Financial Services: Re-Opening the Courthouse Doors to Victimized Consumers, is being released the day before a widely anticipated proposed rule from the Consumer Financial Protection Bureau (CFPB). CPR and other consumer protection experts expect the proposal to restrict the …

May 3, 2016 by Daniel Farber
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It's commonplace to say that agencies engage in lawmaking when they issue rules. Conservatives denounce this as a violation of the constitutional scheme; liberals celebrate it as an instrument of modern government. Both sides agree that in reality, though not in legal form, Congress has delegated its lawmaking power to agencies. But this is mistaking an analogy for an identity. It's true, of course, that Congress has given agencies the authority to make rules, which is one aspect of legislative power. But agency authority is a far cry from the robust policymaking power enjoyed by Congress. Thus, the idea that Congress has transferred a chunk of its lawmaking authority to agencies is quite an oversimplification – an oversimplification that has distorted debates over delegation.

Congress can legislate on any topic within its constitutional powers, with no need to explain its decisions or provide supporting evidence. Stakeholders …

May 2, 2016 by James Goodwin
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Once upon a time, congressional conservatives pretended to care about the appearance, if not the reality, of corruption afflicting the federal budgeting process. Strangely, they chose to act on their sanctimonious outrage by banning earmarks – or legislative instructions that direct federal agencies to spend appropriated funds on certain specified projects – while leaving the much greater problem of "limitations riders" intact. These riders essentially function as the reverse of earmarks by prohibiting federal agencies from spending appropriated funds on certain specified projects, and today, they are typically used to block public safeguards at the behest of powerful corporate interests. 

Last year, I published a report along with CPR Member Scholars Tom McGarity and Richard Murphy that examined the growing problem of anti-regulatory limitation riders in the current Republican-controlled Congress. To highlight this problem, we looked at the then-pending Fiscal Year 2016 Interior and Environment Appropriations bills moving through …

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